CONNECTION POINT PTY LTD (Migration)
[2020] AATA 5222
•27 August 2020
CONNECTION POINT PTY LTD (Migration) [2020] AATA 5222 (27 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Connection Point Pty Ltd
CASE NUMBER: 1804155
HOME AFFAIRS REFERENCE(S): BCC2016/2067240
MEMBER:De-Anne Kelly
DATE:27 August 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 27 August 2020 at 2:49pm
CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – business was not operational – business was not located in a regional area -financial capacity to pay the full-time salary for the nominated position for at least 2 years – decision under review affirmedLEGISLATION
Migration Act 1958, ss 140, 359
Migration Regulations 1994, r 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 16 June 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(A) of the Regulations because following a site visit by officers of the Department it was found that the business was not operational and was not located in a regional area.
The applicant appeared before the Tribunal on 15 June 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent who was Ms Amanda Scott MARN: 1279145 of Waterford West Qld 4133 at the time of lodging the nomination application but was represented for the review by Mrs Kathryn W J Bateman MARN: 0637567 and Mrs Paula Sayuri Torii MARN: 1384572 both of Migration Team Australia, Tweed Heads NSW 2485.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Connection Point Pty commenced trading in 1996 as a consulting firm. Since 2007 it has traded as 123 Finance Solutions and offers finance advice; finance broking; finance solutions; finance alternatives and debt management and consolidation solutions and alternatives. The director and owner is Ms Lia Maria Galante.
On 16 June 2016 the applicant lodged a regional sponsored migration scheme-visa subclass 187 application in the direct entry stream for a position located at Matzia Avenue, Nerang QLD 4211 for the position of office manager on $43,000 per annum in favour of Mr Vignesh Menon Venugopal.
Documents including the following were provided with the original application:
1)Current company extract from ASIC dated 2 June 2014.
2)CPD record sheet from the Mortgage and Finance Association of Australia for the applicant dated 15 June 2015 showing an address at Pacific Pines.
3)Qualifications for the director of the company.
4)Business activity statement Q3 2013; Q1, Q3, Q4, 2014; Q1, Q2, 2015.
5)Clerks Private sector award 2010.
6)Organisation chart showing manager/director; office manager; customer service manager; IT and marketing manager and three finance dealers.
7)General tenancy agreement for property at Pacific Pines for rental in 2014.
8)Letter of engagement dated 8 June 2016 signed by applicant nominee including job description.
9)Overview of the business.
10)Online application for employer nomination dated 16 June 2016.
11)Lease agreement for property at 1 Nerang Street from 25 June 2016 to 24 June 2017 with maximum number of persons to occupy licensed area (one).
12)Business activity statement Q2 2016.
13)Company tax return 2016.
14)Overview of 123 finance solutions.
15)Documents for the nominee such as national police certificate.
16)Submission dated 15 July 2016 from the then migration agent.
17)Invitation dated 27 November 2017 from the Department to comment on adverse information.
18)Email reply from the applicant to the Department dated 27 November 2017.
19)Lease agreement for office space at 1 Nerang Street from 1 July 2017 to 30 June 2018 with maximum number of persons to occupy licensed area (one).
Documents including the following were provided after the review application was lodged:
20)Invitation from the Tribunal dated 24 February 2020 to provide information.
21)ABN look up for the applicant.
22)Registration for business name dated 2 March 2020.
23)ASIC registration and current company extract.
24)Tax return for financial year to 30 June 2019; 30 June 2018 and 30 June 2017.
25)Financial statements to 30 June 2019; 30 June 2018.
26)Business activity statement Q1, Q2, Q3, Q4, 2019.
27)Business activity statement Q1, Q2, Q3, Q4, 2018.
28)Business activity statement Q3, Q4, 2017.
29)Profit and loss from 1 July 2019 to 31 December 2019.
30)Selection of bank statements from 29 March 2018 to 31 January 2020 showing significant deposits and withdrawals of up to $50,000 per transaction.
31)Small business insurance certificate of currency dated 17 October 2019.
32)Tenancy agreement dated 2016 for Matzia Avenue, Pacific Pines.
33)Appointment of credit representative dated 19 June 2014 at the Pacific Pines address.
34)Insurance certificate of currency dated 2015, at the Pacific Pines address.
35)Origin Energy bill dated 15 April 2019 addressed to the nominee with email exchange confirming applicant will pay the account.
36)Origin Energy letter acknowledging new agreement addressed to the nominee dated 2018.
37)Email exchanges between applicant and nominee regarding rental increase, certificate of inspection for fire extinguishers, inspection by landlords, accountants, office repairs, invoice from LJ Administration and Bookkeeping Services for $800 due 8 March 2020.
38)PAYG payment summaries for the nominee from 1 July 2016 to 30 June 2019 showing gross payments of $43,000 to $55,000.
39)Payslips for the nominee.
40)Photos of the office at Price Street Nerang showing exterior and interior with glass panelled office with one desk, one chair, one PC, one printer, one filing cabinet.
41)Employment contract dated 30 June 2018 indicating wage increase to $55,000 per annum effective 1 July 2018 with the same job description attached.
42)Selection of online advertisements for office managers and bespoke salary guide showing office administrator on average salary of $55,000.
43)Email dated 2019 from the applicant indicating there were four candidates but none spoke Cantonese or Malay. One was mostly HR; one was IT; one had no experience and one was a croupier.
44)Regional certifying body advice including form 1404 dated 7 September 2016 and RCB assessment statement.
45)Summary of domestic recruitment efforts.
46)Gumtree advertisement dated 2016 advising that Hindi, Punjabi, Chinese or Filipino language strongly considered.
47)Website for the applicant.
48)Statutory declaration from the director dated 9 March 2020 advising they recently hired an administration person to take care of the bookkeeping and general administration with details on the tasks of the office manager.
49)Statutory declaration from the nominee dated 6 March 2020.
50)Qualifications and resume for the nominee.
51)Submission from the registered migration agent dated 9 March 2020 quoting The Trustee for Y & B Family Trust (Migration) [2020] AATA 99 (20 January 2020) and 1504169 (Migration) [2016] AATA 4112 (20 July 2016), regarding the need for the applicant to employ a paid employee in the office manager and business development manager roles.
52)Movement records showing the director travelling in and out of Australia.
53)Business activity statement signed by the director for Q1, 2020.
54)Payslip for the nominee for 1 May 2020 to 31 May 2020 with total earnings of $4583.33.
55)Office procedure manual.
56)Emails dated 2020 from the nominee to the director regarding rental payments and Origin Energy bills.
57)Bank statement from 31 October 2019 to 31 December 2019 again showing significant transfers.
58)Evidence of lease for Lavelle Street Nerang June 2020.
Documents including the following were provided after the hearing:
59)Letter dated 24 June 2020 from the director to the Tribunal stating:
“since the hearing-she has made great strides in making personal and business decision, as advised at the hearing-the moment the borders are open for international travel-I am off! This is nothing new-as you have my international movement records that prove I spend a huge amount of time overseas. Further to this I have decided that I no longer wish to be bogged down with the day-to-day grind of financial paperwork and responsibility my business demands of me and I am now reducing my workload part-time.
A new staff member has been employed on a full-time basis-whereby she is being trained up to attend to the financial administration tasks that ordinarily form part of my day to day duties. She is also being trained in other low-level tasks (mail/phone messages et cetera) to relieve these duties from Vignesh to allow him to focus on more managerial duties. Therefore, the business now employs additional staff and the staff structure has now changed whereby Vignesh is now managing/training/overseeing the following team members in his role as office manager; finance officer part-time (the director); finance admin clerk full-time-Ms B and bookkeeping general admin casual Miss J.
Additionally, Vignesh also has access to the business bank account via Internet banking. He has his own login and password. He has the ability and responsibility of accessing business funds/making payments required by the business; again to reduce my day-to-day interaction with the business (to decrease my hours/responsibility) which is further increased his responsibility in the role of full-time office manager.
60)New organisation chart showing the nominee as office manager and under this role administration clerk; finance officer and bookkeeping/general administration.
61)Employment contract dated 22 June 2020 between the director and Ms B for the position of administration clerk on $44,850 per annum plus superannuation with job description attached.
62)Fair work ombudsman pay rates summary for level II clerk.
63)Email from Ms B dated 19 June 2020 to the nominee stating “I was excited to receive your email and job offer/contract”.
64)Email from Miss J dated 17 June 2022 to the nominee regarding position.
65)Photo of business credit card in nominee’s name.
66)Email dated 27 July 2020 from the director giving consent for her oral evidence provided at the nominee’s hearing on 22 July 2020 to be used as evidence in the employer nomination review.
Documents including the following were provided following the s.359A letter dated 7 August 2020 from the Tribunal:
67)Letter from the director dated 21 August 2020.
68)Tax invoice for premises rented at Nerang dated 26 August 2020.
69)Letter dated 17 August 2020, from the director to (redacted) regarding a property in Qld and the statement ‘the agreement of 2.00% commission that is to be paid to Connection Point Pty Ltd on settlement of (address removed) will be maintained going forward. This will apply to the next project, (address removed).’
70)Company annual accounts to 30 June 2020.
71)Letter dated 17 August 2020 to the director Ms Galante with company details and signature redacted stating ‘I am writing this letter on behalf of (redacted) to confirm that the total payable interest up to date on the (address removed) is currently standing as follows; MOR001053 $7,250.00; MOR001040 $43,833.
72)Letter dated 15 August 2020 to the director Ms Galante with company details and signature redacted stating:
We are pleased to present the Offer to Purchase indicating the terms and conditions upon which a client of an Integrated Securities managed entity would be prepared to enter an exclusive due diligence and dealing period in connection with an acquisition of up to 100% interest in the Property.
Should you wish to clarify any aspect of this Offer, please do not to hesitate to contact
the undersigned. We look forward to hearing from you.73)“Offer to purchase” document with company details redacted for various properties valued from $7,149,225 up to $9,998,750. (This document did not refer to the applicant company or from whom the document originated).
74)A number of emails from businesses regarding property and ‘client card’ but not referring to expected income from these activities.
75)A Tax invoice dated 14 August 2020 from Connection Point Pty Ltd to (redacted company details) for $1,674.20 with annotation ‘first week’s income from (redacted) – already paid 1 of 2 clients in Wollongong’.
76)An email from the director to (redacted company details) stating that the consultancy fees due weekly is $1,320.
77)Letter from the accountant dated 20 August 2020 stating, ‘We can confirm the business is legally and viably operating and has access to sufficient funds for all its obligations including employee/contractor wages/overheads including rent and utilities.’
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
During the hearing, the director Ms Galante advised that she is overseas a good deal and with the simpler model that she has adopted for the business it is possible to work from her laptop anywhere on her travels. She relies on the nominee to forward her tasks that require her attention.
The business has re-located a number of times from an address in Pacific Pines where the location was a residential apartment which was converted into an office; to an office in Nerang Street, Nerang with a lease stating only one occupant permitted; to an office in June 2018 at Price Street, Nerang and finally on June 2020 to an office in Lavelle Street, Nerang.
Tax returns for the business show the following figures for the FYs 2018 and 2019.
Tax return 2019 2018 Income 159,231 87131 Superannuation 5225 4085 Wages 55,000 43000 Total Exp 50,357 23737 Profit 48649 16309
The director advised they do not have as many staff as they had anticipated because the business is a simpler model to operate and she can undertake her responsibilities sitting on a beach in the European Union. As she is overseas a lot, someone is required on the ground to take charge of the day-to-day running of the business. They did hire a bookkeeper at the beginning of the year (2020) but the contract had ceased and she was putting the further engagement of the bookkeeper off until around Christmas 2020.
The job description was attached to the latest employment contract dated 30 June 2018 and reads as follows:
Tasks Include:
a) Contributing to the planning and review of office services, and setting priorities and office service standards;
b) Creating an office procedures manual for all matters and maintaining and updating the office procedures manual as required;
c) Allocating human resources, space and equipment;
d) Assigning work to and monitoring work performance of staff and ensuring that KPI’s are met and a quarterly reporting program is implemented on each staff member;
e) Managing records and accounts of the office and doing the banking and petty cash;
f) Liaising with other Professionals to coordinate office business and to facilitate resolution of problems – managing conflict;
g) Ensuring all office equipment and office supplies are maintained and accounted for;
h) Ensuring compliance with occupational health and safety regulations;
i) Ensuring the work place complies with relevant government legislation, policies and all requirements and procedures are adhered to;
j) Coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision and providing weekly reports to management on the above;
k) Proficient in computer skills, Excel, Word, Adobe, PowerPoint and MYOB; and
l) You will be working in our regional head office so your own transport is required.
Hours:
As we are in the finance industry, you will be expected to work after hours and some weekends, as this is when clients are available. This would include the documents preparation for the clients and the preparation of any reports that might be required urgently at the office.
The Tribunal was concerned that the higher-level tasks related to the supervision of other staff, of which there were none employed in the business, were not being undertaken by the nominated position. It was concerned that the Procedures Manual dealt with low-level tasks such as mail collection; office supplies; fire equipment servicing every 6 months and contact numbers for the real estate agent, plumber and electrician. There were none of the higher tasks that would be associated with a business in the financial services sector such as privacy policy; information security policy; staff training; technical access; technical infrastructure; password security or incident management protocols to name a few.
The Tribunal undertook an analysis of the tasks of the nominated position that correspond to the tasks of the ANZSCO Office Manager 512111 and gave a weighting of 1.00 if the task fully corresponded and 0.00 if the task did not correspond and a fraction of this if the task partly corresponded. This analysis is shown below:
ANZSCO 512111
Office ManagerTribunals finding on tasks of the nominated position that correspond with the ANZSCO Tribunal reasoning Weighting OFFICE MANAGERS organise and control the functions and resources of offices such as administrative systems and office personnel.
.
1) contributing to the planning and review of office services, and setting priorities and office service standards
a) Contributing to the planning and review of office services, and setting priorities and office service standards
b) Creating an office procedures manual for all matters and maintaining and updating the office procedures manual as required;
There is scant evidence of any of these tasks being undertaken except for the Procedures Manual which consists of low level tasks so the Tribunal gives it a weighting of .25.
.25
2) allocating human resources, space and equipment
c) Allocating human resources, space and equipment;
Other than the nominee there are no other staff and the photo of the office shows minimal equipment to allocate
0.0
3) assigning work to and monitoring work performance of staff d) Assigning work to and monitoring work performance of staff and ensuring that KPI’s are met and a quarterly reporting program is implemented on each staff member;4 Tasks
Other than the nominee there are no other staff. 0.0 4) managing records and accounts of the office
e)Managing records and accounts of the office and doing the banking and petty cash;The nominated position does manage records and accounts. 1.0 5) liaising with Professionals to coordinate office business and to facilitate resolution of problems
f) Liaising with other Professionals to coordinate office business and to facilitate resolution of problems – managing conflict;
1.0
6) ensuring office equipment and supplies are maintained g) Ensuring all office equipment and office supplies are maintained and accounted for;
1.0 7) ensuring compliance with occupational health and safety regulations h) Ensuring compliance with occupational health and safety regulations;
1.0 8) ensuring work complies with relevant government legislation, policies and procedures i) Ensuring the work place complies with relevant government legislation, policies and all requirements and procedures are adhered to.
There is a significant difference between the nominated positions task of ensuring the ‘workplace’ complies and the ANZSCO which requires the “work” to comply. There is scant evidence that the position ensures the work complies with financial services regulations and legislation under ASIC. 0.00 9) coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision j) Coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision and providing weekly reports to management on the above;
There are no other staff except for the nominee. 0.00 Tasks not corresponding to ANZSCO. k) Proficient in computer skills, Excel, Word, Adobe, PowerPoint and MYOB; and
l) You will be working in our regional head office so your own transport is required.
9 Tasks in Total Number of ANZSCO tasks met by nominated position
4.25 % of ANZSCO tasks met by nominated position
47%
The Tribunal finds that of the tasks to be performed in the nominated position, only 4.25 or 47% of the tasks correspond with the nine tasks of the ANZSCO 142111 position of retail manager.
The Oxford Dictionary online provides the following definition of correspond: ‘Have a close similarity; match or agree almost exactly.’ A 47% alignment would not reasonably be said to be a ‘close similarity’ or to ‘match or agree almost exactly’.
The Tribunal finds that the nominee has not been working as an Office Manager since July 2016 except for a few months in early 2020 when a part time bookkeeper was employed and the nominee may have been working as an Office Manager.
The concern over the lack of high-level tasks undertaken by the nominated position was brought to the applicant’s attention under s359AA of the Act.
The director advised that a written submission would be made within 14 days following the hearing.
The submission was made and included a letter from the director advising that two new staff were being appointed; Ms B for the position of administration clerk on $44,850 per annum plus superannuation and another position and stating:
‘since the hearing-she has made great strides in making personal and business decisions, as advised at the hearing-the moment the borders are open for international travel-I am off! This is nothing new-as you have my international movement records that prove I spend a huge amount of time overseas. Further to this I have decided that I no longer wish to be bogged down with the day-to-day grind of financial paperwork and responsibility my business demands of me and I am now reducing my workload part-time.
A new staff member has been employed on a full-time basis-whereby she is being trained up to attend to the financial administration tasks that ordinarily form part of my day to day duties. She is also being trained in other low-level tasks (mail/phone messages et cetera) to relieve these duties from Vignesh to allow him to focus on more managerial duties. Therefore, the business now employs additional staff and the staff structure has now changed whereby Vignesh is now managing/training/overseeing the following team members in his role as office manager; finance officer part-time (the director); finance admin clerk full-time-Ms B and bookkeeping general admin casual Miss J.
Additionally, Vignesh also has access to the business bank account via Internet banking. He has his own login and password. He has the ability and responsibility of accessing business funds/making payments required by the business; again to reduce my day-to-day interaction with the business (to decrease my hours/responsibility) which is further increased his responsibility in the role of full-time office manager.’
In the meantime, a hearing for the visa applicant was held on the 22 July 2020 whereby the nominee and the director who appeared as a witness, confirmed the new staff as a full-time administrator on $44,850 plus super and a casual bookkeeper for 10 hours per week @ $40 per hour or $20,800 per annum. The director gave permission for her evidence at the visa applicant/nominee’s hearing to be used in the consideration of the employer nomination review.
The Tribunal became concerned about the rapid change in staff employment approach from the hearing on 15 June 2020 where there were no plans to employ additional staff until Christmas to the submission on 24 June 2020 when two new staff had been engaged. The Tribunal notes that with the addition of these two new staff, the nominee may be working as an Office Manager from June 2020 onwards.
There was also a concern over whether the business could afford to employ three staff including the nominated position. On 7 August the Tribunal wrote to the applicant as follows:
The particulars of the information are:
The Decision Record and Notice of Decision dated 5 February 2018, refusing the
nomination application you lodged on 16 June 2016;
The information given to the Tribunal at the hearing for the nominee on 22 July
2020, confirming that you have employed two new staff for the business; and
The financial evidence provided for the 2019 and 2020 financial years.
This information is relevant to the review because the applicant is required to meet all
criterions under the limb of r.5.19 that claims are made against. As you have made
claims to meet r.5.19(4), one of these requirements is r.5.19(4)(d)(i), which requires
that the nominated person must be employed in the full time position for a minimum of
two years. When assessing this criterion, it is common to assess the financial viability
of the business.
If we rely on this information in making our decision, we may find that the business is
not able to afford to pay the wages of all employed parties at the business. If the
Tribunal makes this finding, it may find that the nominee will not be employed on a full
time basis in the position for at least two years, and make a finding that you do not
meet r.5.19(4).
CONNECTION POINT PTY LTD is invited to give comments on or respond to the above information in writing.The director wrote directly on 21 August 2020 stating that ‘I highly refute the fact that Connection Point Pty Ltd T/A 123 Finance Solutions (referred to as ‘my business’) is not able to afford to pay the wages of all employer parties’. The director states that she has been running the business since 2000 and has employed many employees since then; has survived many business crises and is now thriving; growing and expanding. She advises that the business has leased a second office in Wollongong which shows the business has the capacity to afford it and will be working from this office for 12 months. The director states that the income from the new clients is huge and is more than enough to cover the current staff load.
The director states that she will be making from Client 1 for the end of August $51,083.33 and refers to the document; ‘Letter dated 17 August 2020 to the director Ms Galante with company details and signature redacted stating ‘I am writing this letter on behalf of (redacted) to confirm that the total payable interest up to date on the (address removed) is currently standing as follows; MOR001053 $7,250.00; MOR001040 $43,833’.
The director states that Client 2 will produce $625 per month although it is not clear which document is being referred to as evidence of this income.
The Tribunal considers that Client 1 does not indicate that this business is ongoing and the letter referring to Client 2 is self-generated and there is no corresponding evidence of income being derived from this source.
The director states Client 3 is a new client and a ‘property deal’ and refers to a letter dated 15 August 2020 to the director Ms Galante with company details and signature redacted stating:
We are pleased to present the Offer to Purchase indicating the terms and conditions upon which a client of an Integrated Securities managed entity would be prepared to enter an exclusive due diligence and dealing period in connection with an acquisition of up to 100% interest in the Property.
Should you wish to clarify any aspect of this Offer, please do not to hesitate to contact the undersigned. We look forward to hearing from you.
“Offer to purchase” document with company details redacted for various properties valued from $7,149,225 up to $9,998,750. (This document did not refer to the applicant company or from whom the document originated).
Client 3 appears to be aspirational and dependent on clients of the applicant purchasing property and may or may not produce the income from commissions for the business. The director states that this ‘property deal has started a precedent for more of the same. This could mean $600,000 to $800,000 per year realistically, going by discussions so far’. The Tribunal notes that the director uses the word ‘could’ when referring to the anticipated income and this reinforces the Tribunal’s views that this income is aspirational at best.
Client 4 is a new consulting client that the director states will produce ‘First invoice for week 1, $1,650 (give or take) will get copy of invoice. Ongoing. Client 5: New consulting client – Wollongong, Not started yet, but will be approx. $1,500 per week, Ongoing’. The Tribunal considers that these refer to the following evidence:
A number of emails from businesses regarding property and ‘client card’ but not referring to expected income from these activities.
A Tax invoice dated14 August 2020 from Connection Point Pty Ltd to (redacted company details) for $1,674.20 with annotation ‘first week’s income from (redacted) – already paid 1 of 2 clients in Wollongong’.
An email from the director to (redacted company details) stating that the consultancy fees due weekly is $1,320.
The Tribunal considers that the evidence is a self-generated invoices and email without other documents such as bank statements to demonstrate that these produced income and there is scant evidence it is ongoing.
The Tribunal accepts that Client 1 may produce income for the FY 2021 of $51,083.33 but for the reasons given above does not accept that other anticipated income is anything more than aspirational or lacking evidence of an income stream.
The director submits the following as the annual wages bill including superannuation for the business and the Tribunal accepts these figures.
Casual bookkeeper: 10 hours per week @ $40 p/h = $20,800 per annum
Full time admin: $44,850 plus super $4,260.75 = total: $49,110.75 per annum
Full time Office Manager (the nominee) $55,000 plus super $5,225 = $60,225 per annum
Total projected wages annually including super for staff is $130,135.75.The only definite figures that the Tribunal is left with are the company annual accounts to 30 June 2020 shown below with the effect that the wages and superannuation for the two new staff would have on the financial figures.
Financial Statement 2020 2020 New staff Income 140,071 140,071 Superannuation 5225 9,485 Wages 55000 120,650 Total Exp 50,357 50,357 Profit 29,489 -40,421
The effect of employing two new staff is that the business would sustain a loss of $40,421 for the FY 2020.
The Tribunal has considered the letter from the accountant dated 20 August 2020 stating, ‘We can confirm the business is legally and viably operating and has access to sufficient funds for all its obligations including employee/contractor wages/overheads including rent and utilities.’ The Tribunal notes that the accountant does not state that the business is profitable but that it has ‘access to sufficient funds.’ It is not clear what is the nature of these funds but if it is the anticipated income for FY 2021 the Tribunal does not accept this income stream is assured as discussed above. The accountants letter does not explain how a loss of some $41,421 will be covered by the applicant nor does it explain how the director of the business will able to receive an income stream from a business to meet her needs when the business is making a loss of $40,421. In the hearing the director did not indicate that she had other businesses that would provide her an income stream. For these reasons the Tribunal places little weight on the accountant’s letter.
The Tribunal has examined the bank statements of the business and did ask the director about the assets and liabilities but since the business manages loans from clients the flow of funds is reflective of these clients’ monies being transferred as well as income and assets of the business.
The Tribunal has considered the director’s assurances that the business can sustain the wages of all its employees but the evidence of this is very weak and little weight can be given to it.
The Tribunal finds that the employee (the nominee) will not be employed on a full-time basis in the position for at least 2 years because the wages bill would result in a loss of $40,421 for the financial year 2020 and the evidence of additional income for the financial year 2021 is weak and unsubstantiated.
Accordingly, the requirement in r.5.19(4)(d) is not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
De-Anne Kelly
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i) both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
0
2
0